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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, September 7, 2016

If you've got it, plead it

Ever since the Supreme Court said in the Iqbal ruling in 2009 that trial courts must dismiss lawsuits that have conclusory or implausible facts, we have seen case after case cheerfully dismissed because the complaint does not have enough factual allegations.

The case is Marcus v. Leviton Manufacturing Co., a summary order decided on September 2. Marcus sues for age discrimination. After running through the usual boilerplate about how lawsuits must plead facts that give plausible support for the allegations, the Court of Appeals (Walker, Chin and Lohier) notes that plaintiff "alleges that the defendant was attempting to get 'younger' by terminating older employees and replacing them with younger ones." But, the Court says, the complaint "is nearly bereft of any specific facts to support this conclusion" and it merely provides a single name without dates, ages or reasons for the termination of other employees. This will not cut it under Iqbal.

Also, while plaintiff says his termination for yelling and using profanity was a pretext as two younger employees used profanity but were not disciplined, the complaint does not say whether these employees were similarly-situated. Nor does the complaint cite the specifics of their conduct. The Complaint also provides no details about the younger and less experienced person who replaced Marcus. "Without more, the mere fact that an older employee was replaced by a younger one does not plausibly indicate discriminatory motive."

Maybe there was a case here, but the Complaint does not give the Court a reason to think so, at least not under the Iqbal pleading standards. The case might have survived a motion to dismiss under the pre-Iqbal rules. But the world has changed, and lawsuits need more specifics than ever before. So here is a pleading tip: put everything (or nearly everything) you know about the case into the Complaint. The more detail, the better. Iqbal compels it.